Sunday, March 9, 2014

Earlier today Joe Sax, one of the founding fathers of modern environmental law, passed away. Professor Sax probably had more influence in shaping the development of the field than any other environmental law professor. His 1971 book Defending the Environment: A Strategy for Citizen Action had a huge influence on me. Sax taught at the law schools of the University of Colorado, the University of Michigan, and UC-Berkeley. My most memorable encounter with him was in 2005 when he gave the annual distinguished lectures at the IUCN Academy of Environmental Law Colloquium at Macquarie University in Australia. At that Colloquium he gave a spectacular set of lectures describing his vision for how traditional conceptions of property law needed to change in response to environmental concerns. I had a rare chance to spend time with him discussing a wide range of environmental issues at various colloquium events including a field trip to a national park near Sydney. He will be sorely missed.

On March 3 federal district judge Lewis Kaplan, as expected, ruled in favor of Chevron in its RICO lawsuit against the plaintiffs and their lawyers who have been trying for more than two decades to hold the company accountable for oil pollution in Ecuador. Kaplan issued a 485-page opinion siding with Chevron on virtually every issue in the case. I insisted on actually reading his opinion before speaking to reporters who called me about the case. While conceding that the plaintitfs may have been exposed to significant oil pollution, Judge Kaplan finds that plaintiffs’ attorney Steven Donziger bribed the judge in Ecuador who held Chevron liable for $9 billion in damages. Although there appears to be strong evidence that a supposedly independent, court-appointed expert’s report submitted to the Ecuadoran court was largely written by the plaintiffs, the Ecuadoran judge who decided the case expressly refused to rely on it. Judge Kaplan makes a huge leap of faith in finding bribery based entirely on the testimony of an admittedly corrupt judge to whom Chevron paid huge sums of money.

It is hard to believe that the lawsuit was a corrupt conspiracy from the start, particularly since the plaintiffs initially filed it in 1993 in federal district court in New York. The case ended up in Ecuador only because Texaco, who Chevron later acquired, argued that the Ecuadoran courts were the best venue for deciding the case. Judge Kaplan brushes this aside with the argument that Texaco was a different entity than Chevron without coming to grips with how this initial choice of venue undercuts his efforts to characterize the decades-long litigation as a vast, corrupt conspiracy. Donziger and the Ecuadoran plaintiffs have strong legal grounds for appeal, particularly since Chevron dropped its damages claim prior to trial because it feared that it would lose if the case were tried before a jury. As Judge Kaplan is forced to acknowledge, there is a circuit split on whether a private RICO action can be brought seeking only equitable relief. While Kaplan enjoined Donziger from seeking to enforce the Ecuadoran judgment in U.S. courts and required him to turn over to Chevron any proceeds he receives from enforcement anywhere, probably the most important aspect of the judgment is his factual finding that the plaintiffs tried to bribe the Ecuadoran judge. Chevron’s Amazon Post website quotes me as saying this, which I guess means they consider me a reliable source of commentary on the case.

Last week China’s National People’s Congress (NPC) opened its annual session, which is held in the Great Hall of the People adjacent to Tiananmen Square. Addressing the nearly 3,000 delegates, Chinese Premier Li Keqiang stated, “We will declare war on pollution and fight it with the same determination we battled poverty.” Li conceded that “smog is affecting large parts of China and environmental pollution has become a major problem, which is nation’s red-light warning against the model of ineffiecient and blind development.” The NPC is considering adopting a national pollution tax that it deferred action on last year. Also under consideration are measures to shut down 50,000 small, coal-fired furnaces, to reduce emissions from coal-fired power plants, and to remove older, pollouting vehicles from the roads. Lucy Hornby, China Premier Declares “War on Pollution,” Financial Times, March 6, 2014, at 4.

On Thursday March 13 I will be leading a group of 39 students and alumni on an environmental field trip to China. We will be visiting Beijing, QIngdao, and Shanghai. Due to China’s great firewall, it is possible that I will not be able successfully to post to either this blog or my parallel blog at www.globalenvironmentallaw.com. If so, try the other blog. The University of Maryland Carey School of Law also will be posting daily blog reports about our trip on its website at: http://www.law.umaryland.edu.

In an extraordinary full-page ad that appeared in the Washington Post on March 6, Tiffany & Company offered strong support for EPA’s opposition to granting a permit for the Pebble Mine in Alaska due to the threat that it will pollute Bristol Bay. “Tiffany and Co.’s 177 years of experience in sourcing exquisite gemstones and precious metals has taught us there are certain places where mining cannot take place without damaging landscapes, wildlife, businesses, and communities. Alaska’s Bristol Bay is one such place.” Citing EPA’s study of the potentially damaging environmental impact of the mine, Tiffany & Company “applaud the Environmental Protection Agency’s responsible and prudent use of its clear authority under the Clean Water Act to protect -- for the benefit of all Americans for generations to come -- this extraordinary natural resource and the thousands of commercial and sports fishing jobs it supports.” The ad concludes that Tiffany and Company “know there will be other gold and copper mines to develop. But we will never find a more majestic and productive place than Bristol Bay.”Last week the government of Nepal took steps to combat the problem of garbage left on its stunning mountains by climbing expeditions. Nepal's tourism authority announced on March 3 that it will require climbers on Mt. Everest to return from their expeditions with at least 18 pounds of garbage removed from the peak in addition to their own garbage. Climbers who fail to comply with this rule may be fined and banned from future climbing on the country's mountains. Gardiner Harris, N.Y. Times, March 3, 2014.

On Friday I participated in a conference on the problem of concussions in professional and amateur sports at Maryland Carey Law School. The conference was organized by the student editors of Maryland’s Journal of Business and Technology Law. It featured a terrific, multi-disciplinary group of medical, legal, and media experts, including Colin Cloherty, a student in my Constitutional Law class who played for four years as a tight end in the NFL. I gave the closing remarks in which I reminisced about the incredible privilege I had to work at a law clerk for Justice Byron White, once the highest paid pro football player in the nation and the best athlete who will ever sit on the U.S. Supreme Court.

About Me

While on sabbatical during the 2007-2008 academic year, I began work on a casebook on Global Environmental Law, in cooperation with Professor Tseming Yang of Vermont Law School. During the spring semester 2008 I taught as a Fulbright scholar at the China University of Political Science and Law in Beijing. This university is the home of my friend Professor Wang Canfa, who directs an environmental law clinic and the Center for Legal Assistance to Pollution Victims, an NGO that has been active in seeking judicial redress for China's burgeoning pollution problems. I am now back at the University of Maryland School of Law. During the spring semester 2009 I taught Constitutional Law and a seminar on Global Environmental Law at Maryland. I also served as a visiting professor at Harvard Law School where I taught Environmental Law during the spring semester 2009.